Russian Law Journal (RLJ)
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POST-CRIMEAN TWISTER: RUSSIA, THE EU AND THE LAW OF SANCTIONS
Full text linkEU-Russia relations have never been simple. On the one hand, these two international actors have common values and interests. On the other, they have a conflictual relationship, which has become particularly acute after the Ukrainian crisis that started in 2014. After Ukrainian crisis, the EU and Russia have entered a new era. Unfortunately, it is an era of brinkmanship. This brinkmanship is marked, prima facie, by mutual sanctions. After 20 years of partnership and good neighborliness it sounds illogically, but it is a reality. The strategic nature of the EU-Russia partnership has been placed in doubt. The aim of this article is to show that the “war of sanctions,” which has frozen official contacts and negotiations have not achieved anything. This crisis can only be overcome through dialogue. However, at the moment, the main critics of the EU sanctions amongst EU Member States are too weak to convince the other members to lift them. The article concerns the modern legal aspects and modern legal circumstances surrounding EU-Russia relations in the light of recent events and the deterioration of relations between Russia and the EU in general. In this framework, an account is given of the EU’s reaction to the Ukrainian conflict in the context of the EU Common Foreign and Security Policy and of the EU restrictive measures as well as in the context of the Russian countersanctions. A special attention is paid to the EU Court of Justice case-law in the field of the restrictive measures
No full textThe basic question of the paper: are power-conferring legal rules coercive and in what sense can we say that power-conferring legal rules coerce? In his recent book, Frederick Schauer answers the first question in the affirmative and proposes an interesting account of how it works. I believe that this claim is unsustainable due to the inconsistencies in the psychological account of coercion applied by Schauer, and his theory’s unrestricted reliance on counterfactuals. In what follows, I try to reconstruct the thesis on the coerciveness of the power-conferring legal rules. The basic insight is that the powerconferring legal rules coerciveness claim is inextricably connected to the unmoralized account of coercion, as any moralized theory shifts the problem from coercion to the issue of distributive justice. However, the unmoralized concept of coercion can hardly be coherent in law because it makes coercion a matter of context, dependent on the willpower of each individual, which threatens to eliminate the force of law as such. Even applied on its own terms, the unmoralized concept of coercion is unworkable within the context of power-conferring through law because power-conferring legal regimes do not eliminate non-legal alternatives, making it dependent on the will of the legal subjects themselves. Schauer’s everlasting contribution lies in his ingenious attempt to substantiate the coercion (of power-conferring rules) claim relying on counterfactuals.A (coerced) choice has been limited relative to some situation which never occurred but would or should have occurred. In order to limit a set of counterfactuals, making them realistic (preferences and needs are limited only by imagination), one should impose severe limits on them, which makes it impossible to characterize the particular situations described by Schauer as coercive in that sense
THE REUNIFICATION OF CRIMEA AND THE CITY OF SEVASTOPOL WITH THE RUSSIAN FEDERATION
Full text linkCrimea and the City of Sevastopol justifiably separated from Ukraine and reunified with the Russian Federation in 2014. Support for this proposition is found in historic, economic, and political reasoning. Extant principles of public international law, derived from the Treaty of Westphalia, and subsequently developed by Great Powers to facilitate their strategic interests, when applied to the Crimean/Russian reunification, produce absurd results: nailing a population to a cross of misery, oppression, and poverty. In addition, the principles invoked are underdeveloped, prejudiced toward Nation States holding the imprimatur of “Great Powers,” and ignore individual and population preferences. Moreover, scholarly and jurist analyses repose upon an edifice of incomplete facts, and ignore the 1991 illegal annexation of Crimea by Ukraine. Crimea suffered twenty-three years of economic rot under Ukrainian rule. Under the Russian Federation, economic conditions in the peninsula are improving, despite the US/EU sanctions imposed upon the Crimean population, a cruelty that the Great Powers cannot justify. Exceptional circumstances that took place in Ukraine in 2013/14 permitted scheduling a referendum to seek independence from Ukraine. Polls taken after the 2014 referendum unanimously demonstrate that the population of Crimea and the City of Sevastopol prefer reunification with the Russian Federation, as opposed to going back and becoming a subject of Ukraine rule and exploitation under a US installed right wing regime. Repeated calls to “give back” Crimea to Ukraine are based on twisted historical narratives, solely designed to weaken the Russian Federation
General Principles and Convention on Contracts for the International Sale of Goods (CISG) – Uniformity under an Interpretation Umbrella?
Full text linkGlobalization and digitalization of international sales creates needs to harmonize rules of international commercial contracts. The question is whether the harmonization should be done by binding rules or using soft law tools or through digitalization. In this article I argue on favor of harmonization through international contracts law rules’ international interpretation.The international interpretation principles used in this article are found from on Art. 7(1) of the Convention on Contracts for the International Sale of Goods (CISG) which sets three interpretation rules: international character; promoting uniformity; and observance of good faith in international trade. These principles are not only principles of the CISG, but also principles commonly recognized in international commercial practice and also in domestic contract rules. I argue that by adopting an international interpretation umbrella – the meta-principle of international interpretation, cross-border contracts could be interpreted under the same principle no matter applicable substantial law. The meta-principle functions as an interpretation umbrella covering general principles and Articles of the CISG, general principles of international commercial contracts, Lex Mercatoria, and cross-border contract provision under national law.The outcomes points out that arbitral tribunals have interpreted general principles of the CISG and Lex Mercatoria in various ways. General principles and their application in case law is analyzed in connection with the Civil Code of the Russian Federation. Tribunals found that general principles of the CISG are applicable even if the CISG is not. It follows Art.’s 7(2) logic to promote international standard to cross-border contracts where the closes connection is international commercial practice rather than any national jurisdiction
QUARTER OF A CENTURY ON FROM THE SOVIET ERA: REFLECTIONS ON RUSSIAN DOCTRINAL RESPONSES TO THE ANNEXATION OF CRIMEA
Full text linkThe article is intended to give a reader a broader view of the post-Crimean academic discussion within Russia. The justifications offered by Russia for its actions in Crimea in 2014 were met with scepticism by the international community and international lawyers across various jurisdictions. Among Russian international legal scholars there were almost no critical voices willing to assess Crimea’s annexation as at least questionable under international law. Rather, these scholars, in their overwhelming majority, spoke or wrote on the matter in feverish defence of Russia’s actions. Some international scholars who study “Russian” approaches to international law or come across them aspart of their research seem prepared to justify the striking unity of perspective among Russian academic international lawyers by reference to the historically authoritarian nature of the Russian state. This article counters arguments of such would-be deference, suggesting that Russian academia be looked at by reference to the emerging standard of international legal profession
THE COURT OF JUSTICE OF THE EUROPEAN UNION AND INTERNATIONAL LEGAL ORDER
Full text linkThe author discusses the relationship between two legal orders: international law and European Union (EU) law. The main provisions of this relationship have been established through the precedential practice of the Court of Justice of the European Union – the EU’s main judicial body. This kind of research seems important because of the gap in the theory of international law caused by the immutable dogma of the supremacy of international law. However, modern legal practice demonstrates a certain fragmentation of the international legal order because of the impact of the existence and development of regional supranational legal orders. The EU legal order, with its own special nature (sui generis), is undoubtedly one of the most developed among them. The Court of Justice of the European Union performs a crucial role in the EU legal system concerning application and interpretation of EU law. It provides a uniform interpretation of this law for the purposes of development of supranational integration. In this context the Court of Justice the European Union establishes the status of European law and its relationship with the national legal systems and international law. The Court acts as protector of the EU legal order against the influence of other legal orders. The Court’s precedential practice reveals EU law’s tendency towards its constitutionalization and the development of its autonomy. The latest practice indicates the Court’s powers to review the EU institutions’ acts in relation to the implementation of UN Security Council resolutions. This proves the Court’s ability to establish indirect control even over UN acts
The Re-birth of Soviet Criminal Law in Post-Soviet Russia
Full text linkUnlike some other Soviet Codes, first acts of the Bolshevist Criminal law were not modeled after the pre-revolutionary imperial codes. In the early Soviet criminal legislation, key juridical categories were replaced by sociological categories. The Marxist-Leninist principle of supremacy of interests of the state over the interests of an individual was envisaged on the legislative level and became a fundamental principle of the Soviet criminal law: crimes against the state were made the gravest ones, and the punishment for these crimes was much heavier than for all other crimes. The principle of analogy allowed criminal prosecution even in the cases, where the offence was not stipulated in the Criminal Code. In 1930s, the trend towards criminal repression intensified. Big changes, including the restoration of the traditional vocabulary of criminal law, the limitation of the doctrine of analogy, the careful analysis of crime in terms of subject and object, took place in the Soviet criminal legislation in 1960, when the new Criminal Code of the RSFSR was adopted. 1990s saw the long-awaited humanization and modernization of Russian criminal law, but situation started to change after the turn of the millennium.Certain cases as well as recently passed pieces of the Russian legislation show the sings of old Soviet attitudes in contemporary Russian criminal law and law enforcement
PRODUCT STAN DARDISATION IN THE USSR: LEGAL ISSUES
Full text linkThe article offers a comprehensive overview of academic views on the strategy and issues of the legal regulation of the Soviet state standardisation system as it formed and evolved. The USSR had a ramified system of legislative acts and codes of practice that thoroughly governed all aspects of quality and safety assurance across all stages of the product lifecycle. They were collectively known as the state system of standardisation. Yet at the turn of the 21st century, this system was largely dismantled under the influence of economic liberalisation ideas, and its underlying documents lost their binding nature. Russia is currently phasing out of the so-called “market romanticism” period shaped by the idea of minimal state interference in the economy, when any imperative provisions of public law specific to the economy were perceived as administrative hurdles. We are witnessing the emergence of a new mechanism of state control over the Russian economy – one based on the principles of the optimisation of state regulation of economic activity. One of the manifestations of this process involves rebuilding the Russian standardisation system on a new footing. Making this process more effective calls for revisiting the Soviet experience and exploring both its strengths and pitfalls. The article looks into the origins of standardisation in Russia, the key milestones in the history of Soviet standardisation, and the relevant legal regulation. Particular attention is devoted to how state standardisation institutions were established and how changes in the system of state agencies having jurisdiction over the matters of standardisation have influenced the efficiency of this system. The distinguishing features of the Soviet standardisation system, compared to those of other countries, are identified for each stage of system formation and evolution. A fair amount of attention is given to an analysis of the Soviet paradigm of state regulation of the economy, as well as its historical and ideological underpinnings and key aspects. The way standardisation has been influenced by this paradigm, along with other paradigms implemented in Russia in recent decades, is analysed. Correlations are drawn between specific aspects of the Soviet paradigm of state administration of the economy, legal issues of standardisation in the USSR and issues of Russian standardisation. The study was undertaken to explore the idiosyncrasies of the Soviet standardisation system attributable to the specifics of the entire economic, administrative, and legal system and ideology of the USSR. This will help identify the positive aspects of this system that were undeservedly discarded upon the transition to the new economic conditions, along with the unresolved legal issues that stand in the way of an effective standardisation system in the Russian Federation. The study explores standardisation issues through a systemic and structural analysis of Soviet standardisation laws in conjunction with Russian and international legislation and practices. It incorporates a critical review of the major findings of academic and analytical studies focusing on standardisation issues. The study calls for an integrated approach that is indispensable to exploring the conditions under which the Soviet standardisation system formed and evolved in conjunction with changes in the academic community’s perception of the legal nature of standards. A comparative law study of international experiences concerned with the regulation of standardisation issues primarily focuses on the legislation of the biggest economies. This made it possible to draw a general correlation between the evolutionary trends and specifics of the Soviet standardisation system and the corresponding systems in these countries. The legalistic, systemic and structural, comparative law, and historical law methods of study helped determine the optimal course for legislative improvements in this field
